As we reported on Friday, the administrative court has dismissed Unison’s judicial review of Employment Tribunal and EAT fees. Unison had claimed that Tribunal fees were unlawful on four grounds:
- the requirement to pay fees violates the principle of effectiveness since it will make it virtually impossible, or excessively difficult, to exercise rights conferred by EU law;
- the requirement violates the principle of equivalence since the requirement to pay fees or fees at the levels prescribed means that the procedures adopted for the enforcement of rights derived from EU law are less favourable than those governing similar domestic actions;
- that in reaching the decision to introduce the new fees regime and in making the 2013 Order the Lord Chancellor acted in breach of the Public Sector Equality Duty; and
- that the effect of the 2013 Order is indirectly discriminatory and unlawful.
The principle of effectiveness
As a finding of fact, the Court concluded that there is sufficient opportunity even for families of very modest means to accumulate funds to pay the fees. Bringing Tribunal proceedings will be expensive, but not to the extent that it will be virtually impossible or excessively difficult. Therefore, the Court ruled that the principle of effectiveness has not been violated.
The principle of equivalence
The judgment stated that Unison failed to demonstrate any breach of the principle of equivalence. Unison argued that the fees regime made it less favourable for individuals to assert their EU-derived employment rights than similar small claims derived from domestic law in the County Court. The Court found numerous flaws in Unison’s argument, including an inappropriate comparison between the level of Tribunal fees and the County Court fees, the fact that the costs regime in County Court cases acts as a strong disincentive to bring claims (the losing party usually pays 2/3 of the other side’s costs) and from April 2014 there will be free access to an alternative dispute resolution service for employment claims.
Public sector equality duty
The Court rejected Unison’s assertion that, in making the 2013 Order to bring in Tribunal fees, the Lord Chancellor breached his duty to have due regard to the need to eliminate discrimination, advance equality of opportunity and foster good relations between those who share protected characteristics. The Court identified a range of impact assessments and consultations carried out by the Ministry of Justice prior to the introduction of fees.
Unison contended that the imposition of higher rate fees in Type B cases had a disparate impact on minority groups, such as women, ethnic minorities and the disabled and therefore constitutes indirect discrimination. While the Court concluded that it has a “strong suspicion” that there will be a disparate effect on those who fall within a protected class, it was not able to form any clear view at this stage. Without the required statistical information, the Court could not decide whether any indirect discrimination could be objectively justified.
Are fees here to stay?
Unison has already announced that it intends to appeal the administrative court’s decision. While the Court’s decisions in relation to Unison’s arguments against the concept of Tribunal fees were fairly unequivocal, the Court’s remarks about indirect discrimination have left the door open to challenge at least the level of fees and how they are classified.